The Occupational Safety and Health Administration (“OSHA”) recently entered into a Memorandum of Understanding (“MOU”) with the Federal Motor Carrier Safety Administration (“FMCSA”). The MOU is intended to facilitate coordination and cooperation between the two agencies when enforcing the anti-retaliation provision of the Surface Transportation Assistance Act (“STAA”), 49 U.S.C. § 31105, and the anti-coercion provision in 49 U.S.C. § 31136(a)(5).

Under the MOU, OSHA and FMCSA agree to share information with the complainant and each other in order to further the purpose of the anti-retaliation and anti-coercion provisions. Specifically, when an individual notifies FMCSA of alleged retaliation as a result of engaging in STAA-protected activity, FMCSA will notify that individual of their right to file a complaint with OSHA and seek a personal remedy. Similarly, when OSHA receives a complaint under STAA, it will promptly provide FMCSA with a copy of the individual’s complaint and any findings and preliminary orders that OSHA issues. In addition, if an individual further notifies OSHA of other safety allegations under the FMCSA, OSHA will provide the individual with the FMCSA complaint hotline number and e-mail address.

Each agency also agrees to share all information it obtains concerning a particular allegation with the other agency when requested and exchange data as expeditiously as practicable.

Finally, both agencies agree to provide training to appropriate personnel from the other agency. FMCSA will provide training to OSHA personnel on how to recognize violations of FMCSA safety regulations and allegations of coercion that should be referred to FMCSA, and OSHA will provide training to FMCSA personnel on how to recognize allegations of retaliation or reprisal and other safety-related allegations that should be referred to OSHA.

This coordination means that employers will likely be subject to investigation by both agencies even when the complaints are frivilous or not submitted in good faith.

Nickole Winnett is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. and is a member of the Employment Litigation practice group and the Workplace Safety and Health practice group. Ms. Winnett is a contributing author on Jackson Lewis’ website, an editor of Jackson Lewis’ OSHA Law Blog, and is a frequent speaker on employment and workplace safety and health matters.

Ms. Winnett advises clients regarding all aspects of the employment relationship, and represents employers on litigation matters in state...

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